Well, I'm new to this forum and so a big hello to everyone and especially those that will be able to help me out.

I was served by CACH, LLC about a debt with BOA for small claims court. I've already gone to the pre-trial and refused to settle. My argument to the judge was that the bill of sale had nothing with my account on it or personally identifies me. I'm pretty confident I can get the Bill of Sale dismissed but I'm wondering about the Affidavit. The problem is that this affidavit is apparently written by the Original Collector and not the Junk Debt Collector. Now, besides the fact that the affidavit lists a different date of sale that the Bill of Sale, the Affidavit was signed a year after the apparent sale of the account. I was going to try to get it stricken as hearsay since they didn't own an apparent account any longer and makes a claim they aren't interested in said account since the date of sale. I've already verified that the Notary (from North Carolina) is legit. This also leads me to believe that most likely the bank officer listed is most likely a real person. Anyways, I'll type out what the affidavit says without personal information and see what you think about my hearsay argument based on what they have.

1. That Affiant is employed by FIA Card Services, N.A., in the position of Bank Officer and is duly authorized to make this affidavit.

2. That FIA CArd Services, N.A. is a wholly owned subsidiary of Bank of America Corporation and is successor in interest to MBNA Bank NA, Fleet Bank (RI), and Bank of America, National Association (USA).

3. That the original contract in this matter may not be available, or no longer accessible to Affiant and that this Affidavit is to be treated as the original document for all purposes. If any originals are discovered, they will be submitted to the court for review.

4. That the statements made in this Affidavit are based on the computerized and hard copy books and records of FIA Card Services, N.A., maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction recorded.

5. That FIA Cards Services account records show that: a. Account number XXXXXX, formerly account number XXXXXX, was opened on (date of being opened) by (my name). b. That there is due and payable as of (a year and a few months ago) the sum of (money claimed in lawsuit), not withstanding legally chargeable post charge-off interest, pursuant to the terms of the card member agreement with FIA Card Services, N.A. c. That said agreement and account was, on (13 days after due and payable listed) sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise or satisfaction of the said claim. d. There were no uncredited, payments, just counterclaims, or offsets against said debt when sold.

6. That as a result of the sale of said account, CACH, LLC and/or its authorized Agent, has complete authority to settle, adjust compromise and satisfy same that FIA Card Services had no further interest in the account for any purpose.

(her signature just under a year after due payable date and only about a month off from account being apparently sold. It was notarized in North Carolina)

My argument is that if BOA has no interest in the account and that there are only computer records that exist from a year before, that means the original documents would have to be the evidence since anything she says falls outside of the business exception as it can't be business practice to review accounts a business has no interest in after being sold. On top of that, it sounds like circular logic.... she is saying what is legally allowed to be charged to me without seeing the original contract? There is also a small notation on the bottom that reads "_CACH, LLC_2/14/2011" which makes me believe the document could have been created by CACH themselves. I don't know if that would have any legal standing but if they gave this bank teller the information in the document and just told her to swear to it, then that means the evidence is false right?

Anyways, just looking to see what you all have to say about it since my trial date is 12/7/11 and I'm trying to argue that they don't own the account so they have no claim to the money. I was looking at adding the case law Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla. County Court, Orange County July 20, 2007) to the list because she is making statements based on computer information.

So do I have to force her to show or should the court throw it out immediately? Everywhere I look I see about making a reply to summons yet it seems in Florida, they told me don't bother and just show up. What if I just show up and challenge the document?

So do I have to force her to show or should the court throw it out immediately? Everywhere I look I see about making a reply to summons yet it seems in Florida, they told me don't bother and just show up. What if I just show up and challenge the document?

If it is in small claims, then that is the usual way things work.

and no the court will not throw it out unless you object to it. Make sure that you are familiar with your court rules

Well, I'm new to this forum and so a big hello to everyone and especially those that will be able to help me out.

My argument is that if BOA has no interest in the account and that there are only computer records that exist from a year before, that means the original documents would have to be the evidence since anything she says falls outside of the business exception as it can't be business practice to review accounts a business has no interest in after being sold. On top of that, it sounds like circular logic.... she is saying what is legally allowed to be charged to me without seeing the original contract? There is also a small notation on the bottom that reads "_CACH, LLC_2/14/2011" which makes me believe the document could have been created by CACH themselves. I don't know if that would have any legal standing but if they gave this bank teller the information in the document and just told her to swear to it, then that means the evidence is false right?

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I would start the attack with the lack of agreement. The affiant said the original agreement may not be available. If that is the case, how did they determine the interest rates and fees?

Second, how can an affiant testify to the account status if there is no agreement?

Third, an affidavit cannot replace a contract. The judge cannot read a statement by an affiant and determine what the terms were.

That being said, if this is small claims, the procedures are different. Check your local rules about if you can file motions or if you wait until the court date to challenge evidence.

If you can attack the affidavit by motion, I would challenge the personal knowledge since there are date descrepencies. Was the affidavit dated before the sale. If so this is a HUGE issue. How can they testify to something that has not happened yet?

Or you can file your own affidavit to counter theirs. If you do, they would need to bring a live witness to support their allegations.

Logged

If you think this is legal advise.......ask yourself why I wasn't smart enough to avoid this myself?!?